TRC Final Report

Volume 1

Chapter 4

Part Appendix

Subsection 4

Crimes against humanity: supplementary definitions from recent cases

Barbie (1988) 78 International Law Report 136 at 137 (France)

31 The definition of ‘crime against humanity’ closely follows Article 6c of the Nuremberg Charter:

persecutions on political, racial or religious grounds … performed in a systematic manner in the name of a State practising by those means a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy, whatever the form of their opposition. Touvier (1992) 100 International Law Reports 337 at 351 – 352 (France)

32 The definition of ‘crime against humanity’ has two elements, one substantive, and one of specific intent. The substantive element is guided by Article 6 of the Nuremberg Charter. To satisfy the intent element, however, more than simple criminal intent or general illegality is required. One must have the actual: intention to take part in the execution of a common plan by committing in a systematic manner, inhuman acts or persecutions in the name of a State practising a policy of ideological supremacy.

33 The Touvier case also supports the notion that crimes against humanity are not synonymous with war crimes.

the elements constituting crimes against humanity within the meaning of Article 6c of the Charter of the International Military Tribunal of 8 August 1945 … are not the same as the requisite elements for war crimes within the meaning of Article 80 of the Code of Military Justice and the crime of maintaining contact with the enemy laid down by Article 70 of the Criminal Code.⁵⁰

34 The definition of crimes against humanity, as contained in section 6(1.96) of Canada’s criminal code, means:

murder, extermination, enslavement, deportation, persecution, or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognised by the community of nations.

35 This supports the notion that the apartheid system in South Africa was a crime against humanity, in spite of the fact that it was perfectly legal within that country, because it contravened international law.